Amalgamated Television Services v Marsden

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40399/99 CLD 20223/95 CLD 20592/96 MASON P MEAGHER JA HANDLEY JA

AMALGAMATED TELEVISION SERVICES PTY LTD v John MARSDEN JUDGMENT 1 MASON P: Leave to appeal was granted at the conclusion of argument which the parties agreed would stand as submissions on the appeal. 2 A defamation action is pending in the Common Law Division. Interlocutory matters are being vigorously contested. Details are set out in this Court's decision in Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97. 3 In aid of an extended application to amend its particulars of justification, the appellant issued a subpoena and a notice to produce to the respondent and a subpoena to the NSW Police Service. Documents were produced to the Registry and a Deputy Registrar made an order for general inspection (cf Supreme Court Rules Pt 37 r10). But, before the appellant's representatives could inspect the documents, the respondent filed a notice of motion seeking to restrict the inspection of specified documents to the respondent and his legal advisers. 4 Inspection was opposed on the grounds of client legal privilege and public interest immunity. The argument also touched upon the unfairness to the respondent that would flow from allowing the appellant early access to proofs of the respondent's witnesses on the issues of truth, which it could put to its own witnesses before the trial began (see Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 212, Levine J, 19 March 1999 at [159]). 5 The learned primary judge ruled that inspection of the documents identified in par [183] of the judgment be restricted to the plaintiff (respondent) and his legal advisers. The decision turned upon client legal privilege which was held not to have been lost. 6 The defendant (the present appellant) sought leave to appeal. A Court comprising Handley JA, Giles JA and myself heard extensive argument on 6 April 1999. Different clusters of issues were raised in relation to many documents. At the end of the day leave was granted, but limited to a small number of documents. The hearing of the appeal was expedited and fixed for 13 April 1999. 7 The respondent was represented by counsel at the leave application on 6 April. The transcript makes it clear that opposition to the grant of leave included the submission that the orders made by Levine J could be supported on grounds additional to that upon which his Honour ultimately relied (client legal privilege). It was contended that inspection should be refused in any event having regard to the principles of public interest immunity which had been debated (but rejected) in the Court below. In addition, reference was made to the possibility (also adverted to in the Court below) that access to the documents might be withheld temporarily from the appellant's representatives in accordance with the principles discussed in Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372 at 382-386 ("Waind v Hill") (see transcript of 6 April 1999, especially pp 36-40, 42-43, 58-60). The respondent suggested that this Court should inspect the documents if it thought it appropriate (see pp 36-37). 8 The respondent also submitted that resolution of the Waind v Hill issue presented no urgency, because the documents were only sought in aid of the trial proper. This submission was vigorously contradicted by the appellant. As indicated below (par 26), the primary judge recognised that the appellant wanted access to the documents inter alia in aid of the pending amendment application. 9 It was made crystal clear during the leave argument and in the reasons delivered at the end of that day that it was up to the respondent to file a notice of contention if he wished to argue that Levine J's orders withholding inspection from the appellant should stand, or even if the respondent wished to contend that the matter should be remitted to Levine J for further hearing in the event that the appeal succeeded on the ground that client legal privilege had been lost. Of course this merely drew attention to Pt 51 r21 of the Supreme Court Rules. 10 No notice of contention was filed. On 12 April 1999 a letter was faxed to the chambers of the President. It was signed by the three counsel then retained by the respondent in the protracted amendment application, including the counsel who had appeared before this Court on 6 April. The Court was informed that the respondent would not be represented at the hearing of the appeal fixed for the following day, and that no argument, written or oral, would be presented on his behalf in addition to that which had been presented at the hearing of the summons for leave to appeal. The reason given was financial exigency. 11 On 13 April 1999 the hearing of the appeal proceeded with senior and junior counsel appearing for the appellant and no appearance for the respondent. Matters moved fairly quickly to the question of the orders to be made upon the basis that the appeal was to be upheld. The notice of appeal that had been filed in consequence of the grant of leave on 6 April relevantly sought to vacate orders 1 and 2 made by Levine J on 19 March 1999. These orders were: 1 Inspection of the following documents be restricted to the plaintiff and his legal advisers: [the documents were identified] 2 The MFI's referred to in Order 1 are to be retained in the confidential custody of the Court until further order. 12 Strictly speaking, the prayer for relief in the original notice of appeal (ie seeking to have Levine J's orders vacated) would have reinstated the earlier order of the Deputy Registrar in its application to the documents in question. That order had given leave for general inspection of all the documents then produced to the Court. Nevertheless, it appeared to the judges hearing the earlier appeal that the remedy effectively sought by the appellant was a positive grant of access and that it was appropriate that the Court should make such an order explicitly in the event that it was disposed to uphold the appeal (see eg transcript 13 April 1999 p8). The appellant was directed to serve the respondent by 1:00 pm that day with a draft amended notice of appeal showing the orders that it claimed, accompanied by a letter indicating that the formal amendment would be sought at 4:00 pm. 13 At 4:00 pm on 13 April, one of the respondent's senior counsel appeared. He confirmed that the documents had been served as directed. Unfortunately, the junior counsel who had appeared on the leave application was ill that day. He had been informed briefly about the amendments sought in the amended notice of appeal and he indicated (through senior counsel) that he would want to respond to the matters which they raised. 14 The matter was debated at some length. The Court indicated that it was disposed to uphold the appeal and to make orders granting leave to the appellant and its legal advisers to inspect specified documents. Senior counsel for the respondent stated his preference that the matter be deferred. However, no adjournment was sought. 15 In recording this, I am not inferring that an adjournment would have been granted. After all, the respondent had elected not to appear on the appeal or to file written submissions that might have kept alive the public interest immunity or the Waind v Hill points. The relief proposed to be granted was essentially that claimed in the original notice of appeal. The Court was anxious to dispose of the appeal in a way that facilitated the pending application then being heard day in and day out in the Court below, in circumstances where access to the documents in question was sought in aid of that application. 16 Senior counsel for the respondent was reminded that the leave application had been heard with expedition; that it had been separated from the appeal proper at the request of the respondent; and that the hearing of the appeal had proceeded ex parte by reason of the respondent's election not to appear. 17 In the discussion which ensued, the respondent reiterated that he wished to oppose inspection on grounds additional to that which had found favour in the Court below (ie client legal privilege), these grounds being public interest immunity and the discretionary deferral of inspection under the Waind v Hill principles. The Court firmly indicated that it had made it clear on the leave hearing that it had been up to the respondent to raise such grounds by way of notice of contention if they were to be taken into account in the disposal of the appeal. Senior counsel for the respondent advanced the submission (a submission repeated before us in the current appeal) that the respondent had the right to choose not to file a notice of contention, leaving the public interest immunity and Waind v Hill issues for another day before the primary judge. Alternatively, it was submitted that the appropriate order on the appeal was to remit the "remaining issues" for determination by the primary judge. The transcript is very clear that the respondent was put on notice that the Court did not accept these submissions. The orders made and reasons given for them put this beyond doubt. 18 Before pronouncing orders, I delivered reasons explaining why the Court considered it appropriate to dispose of the appeal in that manner and on that day. Handley JA and Giles JA agreed with those reasons, which were as follows: On 6 April, the Court, after hearing argument, granted leave to appeal limited to a single issue. The transcript of the leave application, which extended over some hours, and the express terms of the directions given by me on behalf of the Court make it plain that the respondent was put on notice that if he wished the Court to consider any basis for withholding inspection in the event that the appeal were to succeed, an issue to that effect was to be raised by a notice of contention. The specific direction was that the respondent was to file his notice of contention and any submissions and documents relevant to that notice of contention by noon on Friday last. It may very well have been that had such notice been given and the Court were of the view, having considered the submissions and arguments and documents, that the issue was worthy of detailed examination, then it could have been remitted. But it is very clear in my view that the respondent was put on notice that the onus lay with him to put the matter in the ring in this Court. The original notice of appeal sought to vacate orders 1 and 2 made by Levine J on 19 March 1999 and to dismiss the respondent's notice of motion filed on 9 March 1999 to the extent that it related to the documents the subject of this appeal. The background of the notice of motion of 9 March 1999 was that each party had under an antecedent order apparently made by a deputy registrar a right to inspect the documents that had been produced to the custody of the Court. The application made by the respondent's notice of motion filed on 9 March 1999 challenged the appellant's right to inspection and was successful in obtaining an order based upon client legal privilege that precluded inspection on the appellant's part. It is clear from the judgment of Levine J that his Honour heard argument in relation to a claim of public interest immunity that was being advanced by the respondent, although not supported by the Attorney General or the Police Service, in relation to various categories of public interest immunity. We were also informed by Mr Reynolds, senior counsel for the respondent, that there was argument in relation to a discretionary basis for withholding a right of inspection from the present appellant. In these circumstances, it seems to me that the reformulated relief sought in the amended notice of appeal that was prepared today and served today on the respondent did no more than spell out in detail the consequences of the issues that were raised. Mr Reynolds, who has appeared in the place of Mr McHugh who had argued the leave application, informed the Court that Mr McHugh is unwell. That said, it is clear that the issues relevant to the making of dispositive orders have been properly agitated and I think it is appropriate that this Court dispose of the appeal so that there be no further impediments as far as this Court is concerned in the continuation of this trial which both parties have made plain they wish to continue without further interruption. Accordingly, what I propose is that the Court pronounce final orders which I foreshadowed and will indicate in a minute, disposing of the appeal on the basis that the reasons will be handed down on Thursday next. 19 Final orders were pronounced as follows: 1 Grant leave to amend the notice of appeal in accordance with the document produced to the Court this afternoon.

3 Vary order 1 made by Levine J on 19 March 1999 by granting leave to the appellant and its legal advisers to inspect the documents referred to in paragraphs 2(a)-(f) of the amended notice of appeal and document 5 in schedule B to the affidavit of Michael Lee made on 1 March 1999.

4 Costs of the appeal to be costs in the proceedings in the Common Law Division. 20 Two days later, on 15 April 1999, the Court published its reasons for upholding the appeal (see Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97). The bulk of the reasons addressed the issue of client legal privilege. However, the matter of present relevance was also addressed by Giles JA (with whose reasons Handley JA and I agreed). He said (at [41]): The respondent had neither filed a notice of contention nor appeared on the appeal, so public interest immunity as a ground for upholding the orders made by his Honour was not part of the appeal. When the respondent appeared later on 13 April 1999 in connection with the amendment to the notice of appeal, the Court indicated that it was disposed to allow the appeal and make orders entitling the appellant access to the documents in question other than documents 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 15, 16, 18 and 19 in schedule B. The respondent contended that an order to that effect should not be made, and that it should be left able to present further argument to Levine J in support of public interest immunity or the exercise of a discretion to defer access to the documents or permit access only on conditions. For reasons then given, the Court determined to make the orders as foreshadowed. 21 The orders were subsequently entered. 22 One might be forgiven for thinking that the issue of inspection of the nominated documents was well and truly laid to rest. Pursuant to an appeal by way of rehearing, the Court of Appeal varied the order of the primary judge which had restricted inspection to the plaintiff and his legal advisers so that it granted leave to the appellant and its legal advisers to inspect a smaller group of nominated documents. And this Court expressly rejected the respondent's submission that it was open to him "to present further argument to Levine J in support of public interest immunity and the exercise of a discretion to defer access to the documents". In Hohfeldian terms, a right was conferred by order of this Court in the exercise of the power found in s75A(10) of the Supreme Court Act 1970. That subsection enables this Court to dispose of an appeal by making any order which might have been made below or which the nature of the case required. 23 Undeterred, the respondent applied to the trial judge on 15 April 1999 to block inspection on the alternative grounds of public interest immunity or the exercise of the Waind v Hill discretion. The appellant objected, relying upon what had happened in the Court of Appeal and upon this Court's orders and reasons therefor. 24 Levine J ruled that he was not precluded from considering the issues of public interest immunity and the Waind v Hill discretion in their application to the nominated documents. His Honour's reasons were that he had not decided these issues; nor had the Court of Appeal done so when upholding the appeal challenging the ruling based upon client legal privilege; nor had the undecided issues been raised for argument in the Court of Appeal by the filing of notices of contention. His Honour was satisfied that the judgment of Giles JA did not "include the disposition, in any final way, on this interlocutory appeal of the two undecided issues". Acknowledging that there was an unquestionably clear order for inspection made by the Court of Appeal, his Honour held that he was nevertheless not precluded from further considering the undecided issues, they being neither res judicata nor subject of the issue of estoppel. 25 His Honour then embarked upon a hearing of the "undecided issues" which spanned the better part of a day. 26 In a reserved judgment given on 7 May 1999 (Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 429), the primary judge held that he was not persuaded that there was a public interest in the maintenance of confidentiality of the documents. Turning to Waind v Hill, he held that the matter of inspection was one in the discretion of the trial judge (Waind v Hill at 383A-C). He observed (at [12]) that the documents had apparent relevance both as to the amendment application and to the issues of justification generally in the trial. Nevertheless, there was in his Honour's view more than "mere forensic advantage or disadvantage" in allowing the defendant to have access to the documents prior to the calling of the witnesses D15 and D16 at the trial. The dispositive order was refusal of leave to the defendant (appellant) to inspect the documents. 27 His Honour did not in terms set aside the contrary orders made by the Court of Appeal on 13 April, although this in effect was what was intended. Were it otherwise, the appellant would have remained entitled to the right of inspection stemming from the Court of Appeal's continuing order. 28 Because we reached a clear view as to what may be termed the threshold matter, we did not hear argument as to the correctness or otherwise of the manner in which the Waind v Hill discretion was exercised. For my part, I can see no error in his Honour's approach on that aspect. Had the appellant's challenge in this Court been based upon the determination on its merits, then, in all probability, leave to appeal would have been refused for the same reasons as this Court refused leave in the application known as the "Corrs Subpoena Appeal" (see Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 312). 29 However, with the greatest respect to his Honour, it was just not open to him to consider withholding inspection by entertaining what he termed the "undecided issues". 30 This Court had disposed of those issues when it ordered that the claimant be permitted to inspect the documents. The order was plain. Equally plain was the Court's intent that such order precluded any revisiting of the public interest immunity or Waind v Hill bases for withholding inspection that had been raised before Levine J in March; canvassed in the hearing before this Court on 6 April; not raised by notice of contention as a ground of opposition to the relief sought in the appeal; and raised and rebuffed in the hearing late on 13 April 1999 when Mr Reynolds SC appeared. 31 Pt 51 r 21(1) provides: Where a respondent to an appeal wishes to contend that the decision of the court below should be affirmed on grounds other than those relied upon by the court below, but does not seek a discharge or variation of any part of the decision of the court below, he need not file a notice of cross-appeal but he must, within 14 days after service of the notice of appeal with or without appointment, file notice of that contention stating briefly but specifically, the grounds relied upon in support of the contention.

The words "wishes to contend" do not, as the respondent submitted, arm a respondent with the right to keep an argument in reserve. Rather, they stipulate that a respondent must give notice of any additional ground before it can be relied upon at the hearing (see David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 420-1). 32 The respondent also submitted that this Court's orders on 13 April 1999 were interlocutory and, as such, there was no res judicata. The orders were also said to be subject to an implied liberty to apply. These propositions may be accepted (see Pt 40 r 9; Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126). But the submission gets the respondent nowhere, because it fails to grapple with two insurmountable difficulties. 33 The first is that the order made by the Court of Appeal was made in terms and circumstances that allowed no doubt that this Court was denying the respondent the right to seek to undermine its order by ventilating elsewhere issues which should have been ventilated in the Court of Appeal. I also reject the respondent's submission that the Waind v Hill discretion is incapable of exercise by any person other than the trial judge. There may be circumstances where it is appropriate for a judge other than the trial judge to look at sensitive documents. And since the exercise of the discretion is itself amenable to appellate review, it must follow that the matter is not by its nature outside of the purview of the Court of Appeal. This is not to say that the Court would not have been responsive to an application to remit the matter for this purpose if it thought it proper to do so. On 6 April it was made quite clear that this was an option. But steps were not taken to keep this option alive. The simple filing of a notice of contention may have been enough when read with the letter from the respondent's three counsel indicating reliance upon the arguments raised on 6 April when opposing the grant of leave. 34 The orders made by this Court on 13 April 1999 gave rise to no issue estoppel or res judicata, because there was no final judgment (Re Wakim; Ex parte McNally (1999) 73 ALJR 839 at [160] - [161]). Nevertheless, it is difficult to conceive of circumstances where, even in a change of circumstances, it would be open to a court lower in the judicial hierarchy to set aside or disregard the effect of the order of an appellate court superior in the judicial hierarchy. Naturally, an appellate court may expressly or impliedly leave open the right to extend or revisit particular issues. For example, it may remit a matter to be dealt with further (in accordance with the appellate court's reasons), or it may otherwise make it plain that the disposal of an interlocutory appeal is limited in its operation (cf Owners of Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 120 ALR 12 at 15; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (24 November 1992, Court of Appeal, unreported)). 35 But this was clearly not such a case. Not only was the intent of the Court of Appeal made crystal clear in its reasons, but its order was made in the context of an expedited interlocutory appeal in relation to documents sought inter alia for use in the pending skirmish about the appellant's right to amend its particulars of justification. That skirmish should not have been further protracted by the respondent revisiting before the trial judge issues which had been agitated before him back in March and which should have been agitated before the Court of Appeal in April had the respondent wished to keep them alive. 36 Fidelity to the orders of a superior court is of the essence of the rule of law. There should have been no equivocation in recognition of or obedience to the orders pronounced by this Court in the proper exercise of its jurisdiction. 37 In University of Wollongong v Metwally No 2 (1985) 59 ALJR 481, the High Court said (at 483): The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard. Mr Metwally was represented - and competently represented - in the argument before this Court. … It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

Metwally was a case in which a party to completed proceedings by way of case stated sought to vacate a perfected declaratory order of the High Court. He wished to raise a point which had not been raised in the High Court and which was in direct conflict with the basis of the case presented on his behalf in the earlier proceedings. Metwally is therefore distinguishable, but the principles stated in the passages quoted have present relevance and full application to the position in which the respondent was placed following the earlier appeal to this Court. 38 The respondent's submission based on the interlocutory nature of this Court's orders also failed to grapple with a second difficulty. It had never been suggested that any change of circumstances might have justified revisiting the matter determined by this Court on 13 April. Even if the inspection order had been made by another judge of the Common Law Division, rather than the Court of Appeal, it is of critical importance that it was the culmination of contested proceedings. As McLelland J pointed out in Brimaud v Honeysett Instant Print Pty Ltd (19 September 1988, unreported, see Ritchie's Supreme Court Procedure NSW [13,047]): In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application. 39 This rule of practice applied with equal force to the inspection order which was intended to have immediate operation. If, to take the hypothetical example discussed during argument, the appellant's solicitors had announced their intent to breach the principles in Home Office v Harman [1983] 1 AC 280, then such a change of circumstances would have enlivened a power to stay the inspection order leading to its setting aside or variation. Whether the power to stay the order could have been exercised otherwise than by a Judge of Appeal is a nice question. But no such situation presented itself in this case. 40 The order for inspection made by this Court on 13 April stands with all its consequences. It would be unbecoming for this Court to pronounce it afresh. It will be appropriate if the orders of Levine J made on 7 May 1999 are set aside and costs awarded to the appellant here and in the court below in relation to the application to preclude the appellant's right of inspection stemming from this Court's order of 13 April 1999. 41 I propose the following orders:

2 Set aside the order made by Levine J on 7 May 1999 in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 429.

3 Order the respondent to pay the costs of the proceedings before Levine J that led to those orders.

4 Respondent to pay appellant's costs of the appeal. 42 MEAGHER JA: I agree with Mason P. 43 HANDLEY JA: I agree with Mason P. * * * * * * * * * *

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